Right to Work (RTW) Facts for NM County Ordinances

To address misinformation about the Right to Work (RTW) ordinance NMBC is supporting that recently passed in Sandoval and Otero County (and is under consideration in several other counties), consider these answers to the most frequently asked questions.

Will the RTW ordinance affect our teachers, firefighters or police?

No! They are completely unaffected.

The RTW ordinance only affects private sector employees covered by the National Labor Relations Act (NLRA), a federal law. No state, county, or municipal employees will be affected by the ordinance in any way.

In fact, hiring halls for construction trades, such as the carpenters or operating engineers, are unaffected. Many employers find the hiring hall arrangements allow them to screen and hire qualified employees, and they are not prohibited by right to work laws in states or counties.

Is the RTW ordinance supported by NMBC pre-empted by state law from passing a local RTW ordinance?

No! The Supreme Court recently threw out the union’s appeal of a nearly identical statute enacted by a county. There is no case or statute anywhere preventing Sandoval County from passing a RTW ordinance for private-sector workers. The same attorneys who wrote the ordinances that were upheld in Kentucky have been consulted to ensure the ordinance will pass legal muster.

Does right to work prohibit unions?

Absolutely not! The right to unionize is guaranteed by federal law. Right to work protections simply prohibit employers and unions from making deals that require employees to pay dues or get fired if they don't. Right to work is the right to work whether you pay dues or not.

Can unions sue and beat the RTW ordinance in court?

To start with, public sector unions cannot sue because they are not affected, so they have no "standing." However, in America, everyone has a right to access to the courts, but the RTW ordinance that is being supported by NMBC is written specifically so as to exempt current collective bargaining agreements. In other words it won’t affect any union until their current collective-bargaining agreement expires. This makes it more difficult for a union to prove that it is harmed and therefore has standing to bring suit. Until the next contract is ratified, it is purely speculative for a union to say it's damaged.

In addition, the legality of local RTW ordinances has been litigated in federal court and UPHELD by the U.S. Sixth Circuit Court of Appeals, the highest court in the land to rule on the issue. And this summer, the US Supreme Court blocked the union's attempt to appeal that decision, declining to hear it.

In the event there is a lawsuit, how expensive will it be and how long will it last?

There is no way to predict how long any potential legal action would drag on, but there are no facts to litigate, so no expensive "discovery" - it is a straight legal argument, and that brief is essentially written because this ordinance tracks the language which has been upheld before.

The County has insurance that covers lawsuits and provides for representation, but in addition to that, just as in Kentucky, there are interested parties including NMBC that are committed to providing a substantial sum dedicated to legal defense over and above any legal expenses covered by the insurance policy. A well-known local law firm and a national labor attorney who represented many of the Kentucky counties have agreed to take on the defense of the case against Sandoval County.

But again, the highest federal court in the United States to consider the issue of local RTW ordinances upheld this very language. Overturning that authority is a heavy lift because it was based on several Supreme Court cases that control, and the County Attorney can elaborate on that.

Isn't the union forced to bargain for everyone, whether they pay dues or not?

No. The union chooses to do that. They call people who do not want to pay "free riders," but that is a misnomer. Currently, those "free riders" are forced to ride the union's bus, even if they don't like where it's going. People who do not want the union, and believe they would be better off negotiating their own deal, are currently forced to pay the union or get fired. This ordinance changes that, and allows employees to stop paying and keep their own money if they think they're not getting their money's worth.

If the RTW ordinance passes, the union has two choices: Represent people even if they choose not to pay OR bargain for only those employees who are dues paying members - called a "members only" bargaining unit.

The union obviously prefers to be the "exclusive bargaining agent" for all employees, even those who do not want the union, because right now, it can make everyone pay. But, if the union wants to disclaim interest in the exclusive bargaining unit, and instead bargain only for those who pay and choose to be members, they could do that as soon as this ordinance passes and not be forced to represent a single employee who does not pay dues. Many local union leaders are surprised to hear this, but the top union officials are well aware of this.